Standard of Care Breached with Boarded ED Patient?

Does a malpractice suit filed by a boarded ED patient allege he or she was being monitored differently in the ED than would have occurred in the intensive care unit (ICU)? In one claim that included this allegation, the ED nurse’s notes clearly showed that the same standard was followed in the ED.

“It was just standard one-on-one nursing with a critically ill patient, which is something that ED nurses do just as well as ICU nurses,” says Jonathan D. Lawrence, MD, JD, FACEP, an ED physician and medical staff risk management liaison at St. Mary Medical Center in Long Beach, CA, who reviewed the claim. “Under those circumstances, when there is no particular difference in care, then the standard is the same for both places.”

There is an exception, however, if special procedures are being performed that are not normally performed in the ED, says Lawrence. These include monitoring an arterial line, an aortic balloon pump, or dialysis — all procedures that might be done in the ED if a patient is boarded.

“If someone is on an aortic balloon pump, for example, an ICU nurse or pump technician should take care of it. That is a different standard of practice,” says Lawrence.

Floor Nurses in ED

Patients admitted to ICU status who are boarded in the ED should receive the same standard of critical care nursing as if they were in the ICU, according to William C. Gerard, MD, MMM, CPE, FACEP, chairman and professional director of emergency services at Palmetto Health Richland in Columbia, SC.

Normally, an admitted patient in the ED has a brief period of transition where essential fluids and medications are administered, he says. “After that period, the care provided must be the standard of the location that the patient’s inpatient status designates,” says Gerard. “Just because the location is different, the skill set of the nursing care should not be different.”

Gerard says that every attempt is made to bring critical care nurses down to the ED to care for boarded patients, but this rarely happens. “In my experience, we are held accountable to the admission status, regardless of location,” he reports. “This is not realistic. But in the eyes of the regulators of health care, there aren’t different tiers of admission based on location.”

Gerard says that a plaintiff lawyer could argue that the standard of care was breached if he or she can prove that ED nurses do not have the same level of orientation, training, skills, competencies, and validation procedures that inpatient critical care nursing units have. “I believe it is a great argument that we don’t provide the appropriate care,” he says. “That is why [the Centers for Medicare & Medicaid Services] CMS is tracking ED throughput metrics, with formal reporting in 2014. They know this is a liability and a potential source of harm.”

Although the most common legal definition of standard of care is how similarly qualified practitioners would have managed the patient’s care under the same or similar circumstances, the standard of care is often a subjective issue and opinions can differ, notes Gerard.

“My biggest concern is that if we continue to have boarded ICU patients in the ED, and some facilities respond by consistently providing critical care nursing with additional skills, will this practice become the new routine norm?” says Gerard.

Lawrence says that since it’s very institution-specific as to when and whether floor nurses come down to care for boarded ED patients, this can’t be considered as the legal standard of practice.

Plaintiff attorneys wouldn’t even be aware that other boarded patients were cared for by critical care nurses while their client was cared for by ED nurses, he adds. “What is otherwise happening simultaneously in the ED almost never gets admitted into evidence as relevant,” Lawrence explains.

An ICU nurse caring for a boarded patient in the ED almost always communicates with the admitting physician and not the emergency physician (EP), unless an emergency occurs, notes Lawrence, “so even though the patient is physically within the ED, it’s really an ICU patient. Hospitals can almost never go wrong because they brought in an ICU nurse to take care of a boarded patient.”

Patient Perceptions

Lawrence has reviewed several claims in which ED patients alleged they received inadequate care because they were placed in a hallway. The allegation in the complaint is almost always that the patient was left to languish in the hallway and didn’t receive the same care and attention as if they were in a room, he says.

“But, in fact, they are being taken care of the same as anybody else,” says Lawrence. “Patients that are not critically ill and don’t need close monitoring are often put in hallways.” The perception of ED patients and families that they are being ignored because they’re in a hallway can be the instigating factor in a suit, however.

“Communication with the family is of the utmost importance,” says Lawrence. “Every satisfaction survey I’ve ever seen says patients would rather be on a hallway on the floor, but trying to get hospitals to do that is difficult.”

If boarding leads to substandard care, this can obviously result in a bad outcome, as well as litigation, says Lawrence, and can help paint a picture of an uncaring situation of a patient being abandoned out in the hallway.

“If the patient feels they were treated badly and then something bad does happen, the patient connects dots that shouldn’t necessarily be connected, but they do it anyway,” he says.

Gerard says that increased liability risks of caring for patients in a hallway are due more to patient dissatisfaction than quality of care, and recommends that EPs sit down with the patient and family and explain the situation.

“Simply rotating patients in and out of rooms and hallways for ‘discharge’ is a strategy we have used. This allows everyone to be in a ‘room’ for at least a portion of their stay,” says Gerard. “Quality of care is the same, but their perception is that the experience was more meaningful when they get in a ‘real’ bed.”

Lawrence says that careful charting that meets the standard of care in both frequency and content for boarded and hallway patients will refute any contention that patients are being abandoned.

“Frequent communication between the EP and the patient and the patient’s family as to the status of treatment and the availability of a floor bed will prevent most feelings of abandonment experienced by these patients,” he adds. “As usual, communication and documentation are the keys.”


For more information, contact:

  • William C. Gerard, MD, MMM, CPE, FACEP, Chairman/Professional Director of Emergency Services, Palmetto Health Richland, Columbia, SC. Phone: (803) 434-3319. E-mail:
  • Jonathan D. Lawrence, MD, JD, FACEP, Emergency Department, St. Mary Medical Center, Long Beach, CA. Phone: (562) 491-9090. E-mail: